Bagan v. Bitterman
| Decision Date | 20 February 1935 |
| Docket Number | 6328 |
| Citation | 259 N.W. 268,65 N.D. 429 |
| Court | North Dakota Supreme Court |
Rehearing Denied March 13, 1935.
Syllabus by the Court.
1. Where one is a guest of a driver of an automobile, the fact that the driver cannot recover for damages accruing from a collision between his car and a truck because of his own contributory negligence does not prevent the guest from recovering damages arising from the collision, when the collision was caused by the negligence of the operator of the truck, as the contributory negligence of the driver of the car is not attributable to the guest; but, if the guest is himself guilty of contributory negligence, then such contributory negligence would bar recovery.
2. The evidence examined, and it is held, that the guest in this case was not guilty of contributory negligence.
3. Members of a copartnership are not liable for a tortious act of a copartner when the injury results from an act committed outside of the common business of the copartnership and not authorized by the partners.
Appeal from District Court, Stutsman County; R. G. McFarland, Judge.
Action by Bernice Bagan, by Mary A. Bagan, her guardian ad litem against Fritz Bitterman, Jake Bitterman, and Philip Rivinius partners doing business as the Streeter Garage. Judgment for plaintiff, and defendants appeal.
Affirmed as to Fritz Bitterman, and reversed as to remaining defendants.
Knauf & Knauf, for appellants.
J. A. Coffey, for respondent.
This is a companion case to that of Emmett Bagan v. Bitterman, ante, 423, 259 N.W. 266. The plaintiff was in the same accident and a victim of the collision.
Judgment for $ 1,583 was rendered against all the defendants and they appeal.
There is no question as to the extent of plaintiff's injuries. We need not review the evidence on this feature -- little if any objection being taken to the amount. It is true one point stated as ground for the new trial is that the verdict is excessive; but little argument is made on this point. So far as the amount of the judgment is concerned it must be considered reasonable.
The right of this plaintiff to recover is based upon the negligence of the defendants. The salient facts are set forth in the Emmett Bagan case. The question of the time, place and manner of leaving the truck on the highway was presented to the jury in all its details. There is a sharp conflict in the testimony as to the location of the truck but the jury found in favor of the version given by the plaintiff. The question of the defendants' negligence was fairly submitted to the jury and the jury found against the defendants. We must therefore assume that Fred Bitterman at least was guilty of negligence in leaving the truck where and when he did.
Defendants claim plaintiff was guilty of contributory negligence "in riding within a car with poor lights, or at a rate of speed so they could not stop within the time of seeing the truck and hitting it and in not keeping a watchout for trucks on the highway."
The testimony shows the lights in the car were good, and sent rays forward 200 feet. The brakes were in good working order. There is testimony that her brother was driving at a rate of 25 miles per hour. From the physical facts in this case we held he was guilty of contributory negligence; but this negligence is not necessarily attributable to the passenger. It is true she testified she was keeping a lookout -- that is, she was watching the road -- but there is nothing to indicate she was doing anything more than any other passenger in a car would ordinarily do.
The answers filed allege, in substance, that the accident was caused by the negligence of Emmett Bagan, with whom the plaintiff "was riding in said automobile, in a common cause, object, and joint enterprise, namely, the going from a pleasure party to their home, said auto being then operated for the use, pleasure and convenience of both jointly, and that said Emmett Bagan so negligently operated and drove said automobile as to create the accident which was the proximate cause of any and all injury and damage. . . ."
The court in its charge to the jury defined "negligence," "proximate cause" and "contributory negligence." There was no request for instructions refused and no exceptions have been taken to the charge or any portion thereof. The case was tried to the same jury and submitted at the same time as the Emmett Bagan case. Separate verdicts were rendered and the jury found from the evidence in favor of Emmett Bagan and well as in favor of this plaintiff. To do this the jury must have found that the accident was not caused by the negligence of Emmett Bagan that it was caused by the negligence of the defendant Fritz Bitterman. It is true the jury found also that Emmett Bagan was not guilty of contributory negligence. The jury must have done so in order to find for Emmett Bagan because the charge is explicit that if Emmett Bagan is guilty of contributory negligence he could not recover, or if the accident was caused by his own negligence. Thus the jury found the accident was not caused by the negligence of Emmett Bagan. It is true the jury should have found contributory negligence on his part which barred his recovery. (See Companion case.) In effect the court charged that this plaintiff could not recover if the accident was caused by the negligence of Emmett Bagan, nor if contributory negligence of Emmett Bagan was attributable to her. There was no request shown for more detailed instructions. Thus ...
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